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PETITIONER: BHAIYA BAHADUR SINGH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       09/07/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 SCC  (5) 174        JT 1996 (6)   182  1996 SCALE  (5)68

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi. J      The only  point arising herein is whether the appellant has been  successful  in  establishing  his  right  of  self defence, mainly  of person  and to  some extent of property, probabilising  with  his  innocence;  and  assuming  in  the alternative that  he had  established  such  right,  did  he exceed it.      The sole  appellant Bhaiya  Bahadur Singh,  aged  about twenty five,  was a  teacher in  a government  high  school, employed a  couple of months prior to the occurrence. He was a resident  of village  Majhigawan whereat  his family owned agricultural lands,  His agricultural.  field known as gadva field  adjoined  the  agricultural  field  of  the  victim’s family, known  as latha  field. These were divided by a Mand (demarcation line) which undisputably was higher by about 2- l/2 feet  or more  from the ground level and was by itself a strip of 10 to 15 feet wide, as described by the prosecution witnesses in  hands, used  as a  passage by  the parties. In order to  cultivate the gadva land, the appellant’s side had to  bring   their  tractor   from  the  village  on  to  the perpendicular boundary line of the victim’s land and then to turn to  get on  to the  strip of land afore-referred to and having covered  some distance  thereon, to  get to the gadva field.  Within   the  corner   of  these   two  right-angled boundaries lay the latha field of the victim’s party.      As is  the prosecution  case, about  two weeks prior to the occurrence the victim party had seeded a portion of that field by  wheat covering  that  corner,  and  the  seed  had sprouted. The  appellant’s tractor, was suspected on the day of the occurrence to have damaged a portion of that field in trampling over a good bit of it alongside the boundaries and in particular  at the corner. Shortly before the occurrence, i.e., on  22-12-1983 at  about 4.30  p.m. the  appellant was seen to  have brought his driver-driven tractor to his gadva

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field whereat  his two labourers were already present one of whom was  Bashistha, PW 1 and the other the latter’s brother Rafaddi. The  victim’s party  were present  in  their  field since morning  seeding it  with wheat. Vishwanath, PW 17,one of the members of the victim’s party, while carrying on such work invited  attention and  required of  Bashistha PW.1  to convey to  Samay Raj  Singh, the father of the appellant, to direct his  driver not  to trample  upon the  sprouted wheat crop of  the victim’s  party. Hearing  this, as is the case, the appellant  went to  his house  in the  village, which is about 1-1/2 furlong away, and brought back a licensed single barrel gun,  belonging to a member of his family, whereafter in a  quarrelsome wood,  using abusive language he fired and with one  shot injured  two members  of the  victim’s party, namely, Mathura,  PW 15  and Ghanshyam,  PW 16  and with the second shot, killed Gokaran, another member. The prosecution thus set  up a simple straight case of murder and attempt to murder on  two counts,  besides offence under section 25 (1) (a) of  the Arms  Act. It has been successful in proving its case beyond  doubt in  the courts  below. The  appellant has been convicted  and suitably  sentenced details of which are available in the judgment under appeal.      The plea  of the  appellant on  the other hand was that while he  was coming  to his  field on his tractor driven by his driver,  he was  stopped by  two members of the victim’s party, namely,  Vishwanath, PW  17 and  his brother Gokaran, deceased and  latter given  injuries by means of a lathi and ballam  (spear)  respectively,  whereas  two  others  namely Mathura, PW  15 and  Ghanshyam, PW  16 menacingly  had aimed lathi blows  on him  but could  not strike. Thus in order to defend himself  he had  fired from  his gun  in exercise  of right of private defence of person as well as to stop damage being done  to his  tractor, as  the victim  party had  with their weapons  aimed blows  at the  tractor too  causing  it damage. According to the appellant, after the occurrence, he went to the police station to lodge first information report but nobody  listened to him there. When arrested on the next day at about 3 p.m. On 23-12-1983, he was found to be having five simple  injuries on  his person which were verified the following day  on medical examination et about 2 p.m. on 24- 12-1983. The description of injuries is given below:      (i) Contusion  1" x 1/2" Irregular.      Bluish and  swollen over the center      part of the back.      (ii) Lacerated  wound 3 cm x 1/4 cm      x 1/4 cm over left scapular region.      Margins were  clean  cut  and  well      defined.      (iii) Contusion  2" x 1/2" over the      back of scalp. Bluish and swollen.      (iv) Incised wound 3 cm x 1/4 x 1/4      cm over  the back  of left  leg  3"      below   the   left   knee,   placed      horizontally.      (v) Two  contusions with  abrasions      2" x 1" over the front of right and      left arm. The tractor was recovered on 25-12-1?83 which bore testimony Of some damage done to it in denting a mudguard and breakage of the back light glass.      The point thus for consideration is : Is the defence of the  appellant  probable?  Prior  thereto  is  the  question whether the  prosecution has been able to prove guilt of the appellant beyond  doubt. The court of session as well as the High Court  have rejected  the plea  of self defence. Rather

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the High  Court has  gone into  that question and demolished it, holding the appellant guilty of the offence.      Let us  detail the  matter. The  case  set  up  by  the prosecution is  that the  latha field  situated  in  village Majhigawan belonged  to three  brothers,  i.e.,  Vishwanath, Gokaran and  Baijnath. They  were resident  of the adjoining village  Samre   about  2-1/2  kilometers  away.  The  field required wheat  seed being  drilled in  the  soil.  For  the purpose, on  the morning of the day of occurrence, two pairs of bullocks were brought to the field by the victim’s party. Budhsen, P.W.10,  and Mathura,  PW 15  were there to perform the jobs  of  ploughmen,  Ghanshyam,  PW  16  tied  up  with Mathura, PW  15 and the deceased Gokaran with Budhsen, PW 10 to drill  the seed behind the ploughs. Vishwanath, PW 17 was there to  supplement the supply of seed, whenever necessary. In the  pre-lunch session,  they had  worked regularly uptil 1.00 pm  and after  two hours  rest  had  recommenced  their operations. The  appellant then  came to his own gadva field bringing his  tractor  driven  by  his  driver,  Devi  Deen. Beforehand his  two labourers,  i.e. Bashistha, PW 1 and his brother named Rafaddi. PW were already there working in that field. It is then that Vishwanath, PW 17 talked to Bashistha PW.1 to  convey to  Samay  Raj  Singh,  the  father  of  the appellant that  the driver of the tractor when coming to the gadva field  should take  care not to trample upon the wheat newly sown by the victim’s party.      On hearing  such protest, it is said that the appellant went to his village to his house and brought a single barrel 12 bore  gun at  about 4.30  pm and  then using wild abusive language, shouted  at the  victim’s party  that who  was the person who could stop his tractor. At that time one Avdhesh, DW.1 of  the village  of the appellant, was statedly at some distance grazing his cattle. His good offices were solicited by the victims to pacify the appellant, as avowedly he was a man commanding  some respect  in his  village. He was in the process of coming forward. The appellant, within the view of all, fired  a gun shot towards Vishwanath, PW.17, but missed him, hitting  Mathura, PW  15 and  Ghanshyam, PW 16 instead, the two engaged at one plough. The pellets hit the chest and belly of the former as well as latter. On re-loading the gun the  appellant   fired  the  second  shot,  hitting  Gokaran deceased, bullet  whereof passed  through  and  through  his shoulder and  trunk stopping close to the other arm. Gokaran died at  the spot.  The matter  was reported  at 7.30 pm the same day at police station Baikunthpur by Vishwanath PW 17.      Jaiparkash Sub  Inspector, PW  18 set the investigation into motion. On reaching the spot he prepared inquest of the dead body  of the  deceased. He did not recover therefrom or at any  place close-by  any weapon much less any ballam, The tractor was  recovered by  him  later  on  25-12-1983  which showed dent  on the  mudguard and  a broken  back light. The appellant was  not available in the village. He arrested the appellant the following day at about 3 p.m. and found on his person five  simple injuries.  He was got medically examined from Dr. R.D. Sharma, PW 11, the following day on 24-12-1983 at 2  pm. As  a result of his discovery statement the weapon of offence was recovered.      On the basis of the injuries found on the person of the appellant he  set up  a plea  of right of private defence of person as well as property at the trial. According to him he had gone  to the police station to have his version recorded but nobody  paid any  heed  to  him  .  P.W.18  dented  such suggestion. The  appellant on  his own  did not  go  to  any hospital for  medical examination in order to establish that he had received injuries at or about the same time when the

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occurrence took  place. His  plea as set up has broadly been referred to earlier. From the prosecution side the statement of Bashistha,  PW.1, is  to  a  certain,  extent  supportive thereof. This  witness  was  the  labourer  engaged  by  the appellant and belongs to his village. Likewise Avdhesh, DW 1 is supporting his case. This witness too was his co-villager and belongs to his own community.      The High Court rejected the plea of self defence set up by the  appellant having  come to  the conclusion  that  the injuries found  on the appellant were self suffered in order to spin  a defence  version. Secondly  the High court on the basis of  the medical  evidence came  to the conclusion that there were  fired two shots but the appellant had owned only one, keeping  the second  one unaccounted.  The  High  Court disbelieved the  evidence of  Bashistha, PW.1  and  Avdhesh, DW.1 supporting the defence version. The High Court believed the prosecution version as believed by the trial court.      When an  accused person sets up a plea of self defence, the onus  to establish  that plea  lies on  him. It  is well established that  the accused  is not required to prove that plea beyond  reasonable doubt  but has  merely to show it as probable. The  onus to  probablise the defence version, from the  salient   facts  and  circumstances  appearing  in  the prosecution case,  or otherwise set up by the accused in the form of  defence evidence,  is always  on him.  Now here the appellant’s  positive  case  is  that  on  the  day  of  the occurrence his  driver driven  tractor carrying a cultivator was being taken to the gadva field and he was sitting on the wooden plank placed behind the driver’s seat between the two mudguards of  the tractor.  His sun was hanging alongside on an iron  rod fitted  on the  tractor. He was then stopped by Vishwanath,  PW   17,  armed  with  a  lathi,  and  Gokaran, deceased,  armed  with  a  ballam,  and  blamed  for  having trampled the  wheat field by means of the tractor. According to him  ignoring the  same he wanted to move ahead and asked his driver to do so, but those people started hitting him as well as  causing damage to the tractor, with the result that he had  to jump  off the tractor carrying his gun and wanted to run  away. Thereafter  not only the aforesaid two persons followed him  but two  others, i.e.  Mathura  and  Ghanshyam armed with sticks also moved towards him menacingly but they could not  strike him. It is at this juncture he claims that he fired from his gun. He felt shy however in mentioning the number of  gun shots  fired by  him. But his silence on that aspect can  safely be  taken that he had owned that both the fires were  made by  him. It  is on  that basis  that we can proceed further to examine his defence.      Dr. R.D.  Sharma, PW.11  found  five  injuries  on  the person of  the appellant. In his opinion, Injuries Nos. 1, 3 and 5  were caused  by some  hard and blunt object. Injuries Nos.2 and  4 could  be caused  by some sharp cutting weapon. according to  him these  injuries were  simple in nature and could be  caused within  24 hours  of his examination, which took place  at about  2 p.m. on 24-12-1983, putting back the occurrence to  be at  about  the  same  time  on  23-12-1983 whereas the  occurrence had taken place a day earlier on 22- 12-1983 at  4.30 pm.  To  say  the  least,  the  Doctor  was extremely casual  in his  observation. Later at the trial he revisedly opined  that those were caused within 48 hours. On 21-1-1984 ,  when asked, he opined that such simple injuries could have  been self  inflicted. When cross-examined at the trial, he  stated that he could not say whether the injuries on the  appellant were  self-inflicted definitely.  He  then added that  it was  likely that  somebody may have inflicted those injuries on the person of the appellant. Again he took

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a somer-sault  to say  that looking  at the  injuries of the appellant the  possibility of self infliction was ruled out. He missed  as well  the distinction  between a  pellet and a bullet. He  described the  bullet found  close to  the  exit wound of  the deceased  to be a pellet instead of bullet and owned that  the word  pellet had wrongly been written in the post mortem  report. In  such state  of medical evidence the best that  can be  derived for  the appellant  was that  the injuries on  his person not may have been self inflicted but may have  been self  suffered. Of course the appellant would have us  believe that  they were not self suffered even, and suffered during the occurrence for which the prosecution had not rendered  any explanation. The superficial nature of the injuries by itself, in our opinion, was the explanation.      With regard  to the  condition of the entrance and exit wounds of  the deceased,  Dr. Sharma,  PW 11, described that tattoing was present around the entrance wound, and smell of gun powder  was obvious  on the  wound which was through and through. The exit wound was found bleeding with dark smoking blood. This  condition was  suggestive of  the fact that the appellant had  fired at  the victim from a very short range. Contrarily no  such  tattoing  was  present  on  the  pellet injuries on  Mathura and  Ghanshyam, PW  which  showed  that these had  been fired  at from  a distances much longer than compared to the deceased.      The appellant  would have  us believe that all the five injuries were  caused to  him while  he was  sitting on  the tractor and  he had  to jump  off the  tractor with  his gun whereafter when  being followed  he fired from his gun. This plea of the appellant ipso facto does not give him the right of private  defence of  person as  well as the property. The damage to  the tractors  whatever, had  been done. It sounds improbable that  having a  gun in  his hands  fully  loaded, three men  even armed  with lathis  and one man armed with a spear would dare go chasing close to him once he was seen in a charging position preparatory to firing. The two sticks in the hands  of Mathura  and Ghanshyam,  PWs could  hardly  be called lethal  weapons because  prosecution  witnesses  have positively stated  that these  sticks were  merely meant  to drive the  oxen. There  was no  reason for Vishwanath, PW 17 and the  deceased  to  be  carrying  any  lathi  and  ballam respectively to  the fields  on the day of occurrence and to such distance,  as there  was no  reason  to  apprehend  any trouble whatsoever. Both parties had never quarreled before. Neither weapon  was found at the spot when the investigating officer conducted  the inquest and further investigation. He was at  the spot by the night itself. Additionally after the appellant had  jumped off the tractor along with his gun, no injury was  allegedly caused to him by the victim party. The right of private defence, if any, (but not holding so) ended the moment the appellant successfully jumped off the tractor and got  at a  safe distance  from the  victims,  young  and sprightly as  he  was  He  himself  being  in  a  dominating position, could  have had  no cause  to fire  at the victims causing  injuries,  dangerous  in  nature,  to  Mathura  and Ghanshyam, PWs  and then  to have  re-loaded his  gun with a powerful cartridge  containing a  bullet, driving it through the body  of the  deceased, from a close range. The deceased could. in no event, have dared to go near the appellant when already a  fire had  been shot  by him  hitting Mathura  and Ghanshyam, PWs.  He would  in the  normal  circumstances  be running away  from the  appellant obeying  the  instinct  of self-preservation.  As  stated  no  had  even  exhorted  his brother at  that juncture  to run away, lest they be killed. The  defence   version  therefore  does  not  probablise  or

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preponderate. The  version and  circumstances pleaded by the prosecution are striking and convincing. It appears that the appellant consciously  and deliberately  fired the two shots successfully; the  second one  after re-loading  the gun. He fully intended  the  consequences  of  his  acts,  i.e.  the injuries to  PWs 15  and 16  and the  instant death  of  the deceased. We hold so.      There was  no previous  ill-will between the parties of any sort,  Agriculturists having  fields cornering path-ways bear the brunt of trampling of crops by turning vehicles, in its stride.  As it  is routine  to trample corners so is the routine to  lodge protests,  not much  meant. The  appellant need not  have felt provoked with a small incident like this and to  have gone  home to bring the gun for mis-use. He had no need  to carry  it to begin with, more so when he was not its license  holder. Yet  his over-bearing  attitude and hot headedness brought  about the  results  he  achieved  within minutes. Countermanding  death penalty or life sentence with self suffering  some injuries from a friendly hand, was some attempt though,  but futile  in sum.  Thus in  our view, the appellant has  miserably failed  in that  regard. The courts below have  inferred that  he had  taken such  step on legal advice. That may be so, for he made himself scarce for a day after the  occurrence. The prosecution has thus fully proved its  case  to  the  hilt.  Besides  two  courts  below  have concurrently found  the prosecution  case reliable  and  the defence version  not worthy  of  credence  on  the  test  of probabilities. We have no reason to differ.      As a result this appeal fails and is hereby dismissed.